담보지상권에 관한 고찰- 담보지상권 성립과 유효성, 저당물 토지의 점유․사용을 중심으로 -

Abstract

The Civil Law Article 279 (Contents of Superficies) A superficiary is entitled to use the land of another person for the purpose of owning buildings, other structures or trees thereon. Therefore, the superficies belong to usufruct, and the superficiary can occupy and use the land. When the registration of superficies has been completed, the right to use and benefit from the land belongs to the holder of the superficies, and the land owner who has established the superficies cannot use or profit from the land as long as the superficies remain. The collateral superficies established together with the mortgage of the land seeks to secure the collateral value of the mortgaged real estate by preventing a third party from acquiring usufruct or infringing acts such as constructing buildings that lower the collateral value of the land until the mortgage of the land is exercised. This can be said that the security superficies established to maintain the collateral value of the mortgaged land are diverted superficies belonging to usufruct for the purpose of collateral. With the establishment of land mortgage, the practice of establishing security superficies was formed, and legal certainty was formed by acknowledging the effect of this type of superficies. Therefore, collateral superficies can be said to be valid as real rights created by customary law. In addition, since the superficies as security are not established for the purpose of owning buildings, structures, etc., they can be said to be invalid contrary to the provisions of Article 279 of the Civil Act on superficies. However, if the security superficies are understood as a kind of real right created by customary law rather than Article 279 of the Civil Act, it is not possible to conclude that the superficies secured by no purpose of owning buildings, structures, etc. are invalid. There is generally no room for rent-equivalent interest or other income to be generated by the superficies, so no loss is incurred. Therefore, the security superficies cannot claim compensation for damages or return of unjust enrichment due to the possession and use of the land by the owner of the land or by a third party, unless there are special circumstances.